Dalton v The Queen
[2015] ACTCA 48
•10 September 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Dalton v The Queen |
Citation: | [2015] ACTCA 48 |
Hearing Date: | 20 February 2015 |
DecisionDate: | 10 September 2015 |
Before: | Refshauge, Penfold and Wigney JJ |
Decision: | 1. The appeal is dismissed. |
Category: | Principal Judgment |
Catchwords: | APPEAL – Sentence – forcible confinement – obtaining property by deception – attempting to obtain property by deception – manifestly excessive – comparable cases – no sentencing trend demonstrated |
Legislation Cited: | Crimes Act 1900 (ACT) Criminal Code 2002 (ACT) |
Cases Cited: | Balthazaar v The Queen [2012] ACTCA 26 Barbaro v The Queen; Zirilli v The Queen (2014) 305 ALR 323 Zirilli v The Queen (2014) 305 ALR 323 |
Parties: | Glenn Stuart Dalton (Appellant) The Queen (Respondent) |
Representation: | Counsel Mr J Lawton (Appellant) Mr J White SC (Respondent) |
| Solicitors Pappas, j.-attorney (Appellant) The Director of Public Prosecutions (Respondent) | |
File Number: | ACTCA 23 of 2014 |
Decision under appeal: | Court: ACT Supreme Court Before: Murrell CJ Date of Decision: 28 April 2014 Case Title: R v Dalton; R v Fleet Citation: [2014] ACTSC 204 |
THE COURT:
The appellant, Mr Glenn Dalton, appeals to this Court against the sentence imposed on him by Murrell CJ upon his conviction for offences of forcible confinement, obtaining property by deception and attempting to obtain property by deception. The sentence imposed was a head sentence of three years and ten months imprisonment with an effective non-parole period of two years, eight months and two weeks. The sole ground of appeal is that the sentence is manifestly excessive.
Facts
The three offences committed by the appellant occurred during a single episode of criminality on 18 and 19 June 2014 involving the appellant, a man named Elliott Fleet and a woman named Saskia Faes. Ms Faes is the appellant’s ex-wife and the mother of his two children. She had also been at some stage involved in a relationship with the complainant, Mr Robert Graham. There was apparently some considerable animosity between the appellant and Mr Graham arising from a dispute concerning the custody of the appellant’s children.
On 18 June 2013 Mr Graham was lured to an apartment in the suburb of Braddon by a text message from Ms Faes. He arrived at the apartment to find that it was occupied not only by Ms Faes, but also by the appellant and Mr Fleet. Upon his arrival, Mr Graham was confined and physically restrained by the appellant, and threatened by the appellant and Mr Fleet. He was then forced into a car with the appellant, Mr Fleet and Ms Faes. The car was driven to Manuka. During the drive Mr Graham was further threatened by Mr Fleet and forced to take some prescription sedatives (Xanax).
At Manuka the appellant demanded that Mr Graham tell him the Personal Identification Numbers (PINs) for his bank cards. In the early hours of 19 June, over a two hour period, the appellant used the PINs to withdraw $1,140 from Mr Graham’s bank accounts via automatic teller machines. He also attempted to withdraw a further $1,500.
Mr Graham eventually passed out as a result of the tablets he had been forced to take. He ended up back in the apartment. He only woke up when he was found by police in the apartment mid-morning on 19 June. Fortunately for Mr Graham, the police had attended the apartment as a result of their investigation of unrelated traffic offences by Mr Fleet.
The total period of effective confinement of Mr Graham was 29 hours.
The charges
The appellant was charged and ultimately pleaded guilty to the following three offences:
1.One count of forcible confinement contrary to s 34 of the Crimes Act 1900 (ACT) and s 45A of the Criminal Code 2002 (ACT) (as co-offender with Mr Fleet), carrying a maximum penalty of ten years imprisonment.
2.One count of obtaining property by deception contrary to s 326 of the Criminal Code, carrying a maximum penalty of ten years imprisonment and one thousand penalty units (a fine of $150,000); and
3.One count of attempting to obtain property by deception contrary to ss 326 and 44 of the Criminal Code, carrying a maximum penalty of ten years imprisonment and one thousand penalty units (a fine of $150,000).
The sentences
The learned sentencing judge sentenced the appellant to 3 years and ten months imprisonment in relation to the forcible confinement count. The sentence was to commence on the expiry of a term of imprisonment imposed for unrelated offences the subject of separate proceedings. In relation to the obtain property by deception and attempt counts, the appellant was sentenced to twelve months imprisonment. These sentences were to commence on the same day as the forcible confinement sentence. They were, accordingly, wholly concurrent with each other and wholly concurrent with the forcible confinement sentence. Her Honour imposed a non-parole period of two years, eight months and two weeks.
The co-offenders, Mr Fleet and Ms Faes, were also convicted and sentenced for various offences. No issue of parity was raised by the appellant on this appeal. It is accordingly unnecessary to say anything more about the sentences imposed on the co-offenders.
Remarks on sentence
None of the appellant’s submissions turned on the sentencing judge’s remarks on sentence. It is accordingly unnecessary to refer to them in any detail. Suffice it to say that her Honour found that the objective seriousness of the forcible confinement count was “moderate to high”. The confinement was for a period of twenty nine hours, the complainant was subject to serious threats that would be likely to inspire terror, and was drugged. The motive was one of personal animosity as well as financial gain for purchasing drugs. There was some degree of premeditation and the offence was committed in company.
At the time of the commission of the offences the appellant was on bail for unrelated charges. He had a criminal history of “minor to moderate seriousness.” He had been in prison previously.
In relation to the appellant’s subjective circumstances, the sentencing judge noted that the appellant had a “substance abuse problem” that had contributed to the commission of the offences. He had, however, completed a residential rehabilitation program in mid 2013.
Submissions on appeal
The appellant submitted that the sentence imposed on him was manifestly excessive having regard to three matters: first, the objective seriousness of the offences and the appellant’s criminal history; second, the appellant’s circumstances; and third, sentences in what were said to be comparable decisions.
The first and second points were not elaborated on at all by the appellant in either written or oral submissions.
In relation to the so called comparable sentences, the appellant’s written submissions referred to four cases involving forcible confinement: R v Hatzis (Unreported, Australian Capital Territory Supreme Court, Neild AJ, SCC No 74 of 2011, 4 September 2012); R v Catanzariti [2014] ACTSC 333; Stott v R [2012] ACTCA 33; and R v O’Brien [2014] ACTSC 156.
The appellant’s submissions appeared to proceed on the basis that these other cases were somehow comparable to his case, not only in terms of the objective seriousness of the offences, but also in terms of the subjective circumstances of the offenders. The appellant then sought to draw some assistance from the sentences imposed in these other cases as somehow demonstrating that the sentence imposed on the appellant was manifestly excessive.
For reasons that will become apparent, it is not intended to summarise the facts and circumstances of the four cases relied on by the appellant. It is sufficient to say that each of them differs from the appellant’s case. In some cases the differences are manifest and significant.
Relevant principles
The principles that apply in relation to the appeal ground that a sentence is manifestly excessive are well settled. They include the following:
·Manifest excess is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge: Dinsdale v The Queen (2000) 202 CLR 321 (Dinsdale).
·The relevant test is whether the sentence is unreasonable or plainly unjust: House v The King (1936) 55 CLR 499; Dinsdale at [6]; Melham v The Queen [2011] NSWCCA 121 (Melham). A sentence which is unreasonable or plainly unjust for no reason other than that it is manifestly too long is a sentence which is erroneous in point of principle because it has not been imposed according to the rules of reason or justice: Barbaro v The Queen; Zirilli v The Queen (2014) 305 ALR 323 at [61].
·In approaching the task of establishing that the sentence is unreasonable or plainly unjust, the Court does so within the context that there is no one single correct sentence, but rather that the process of sentencing involves due allowance for differences of judicial opinion at first instance whilst still acting in accordance with principles: Melham at [85].
·It is not enough to establish that a sentence is manifestly excessive that the members of the appeal court would have imposed a different sentence: Markarian v The Queen (2005) 228 CLR 357 at [28]; R v Abbott (2007) 170 A Crim R 306 at 309 [14]; Balthazaar v The Queen [2012] ACTCA 26 at [61].
Having regard to the way the appellant contended that his sentence was manifestly excessive, the following observations of Hoeben CJ at CL in Frahm v R [2014] NSWCCA 10 at [19] are particularly apposite:
As a matter of principle, submissions based on a small selection of cases produce a result favourable to an applicant, is not an approach which has found favour in this Court. It is, of course, always possible to find cases which favour a particular outcome. This selection of cases is so small that it cannot demonstrate a sentencing trend. Each case of necessity depends upon its own particular facts and a selection of cases in this way does no more than demonstrate that a particular outcome occurred in each of the nominated cases. A small selection of cases such as this does not and cannot demonstrate that a particular sentence was manifestly excessive.
Decision and disposition
There is no basis for concluding that the sentence imposed on the appellant is manifestly excessive.
The appellant’s submissions based on the supposedly comparable cases have no merit. The cases relied on by him are not truly comparable and in any event establish nothing more than that particular outcomes occurred in the particular facts and circumstances of those cases. No sentencing trend is demonstrated. No sentencing principles are articulated or applicable to this case, other than the identification of relevant factors, all of which were considered and taken into account in the sentencing of the appellant. For the reasons given by Hoeben CJ at CL in Frahm v R, this small selection of cases cannot and does not demonstrate that the appellant’s sentence was manifestly excessive.
Nor do the appellant’s subjective circumstances or the objective seriousness of the offences suggest, let alone compel, a finding of manifest excess. These were, on any view, serious offences that warranted a serious penalty. The appellant’s subjective circumstances did not demand any particular leniency. The sentence imposed was well within the available sentencing range and could not in any sense be said to be “unreasonable or plainly unjust.”
Finally we note that, in the circumstances, the sentencing judge could reasonably have accumulated some part of the 12-month sentences imposed for the offences relating to obtaining money by deception on the forcible confinement sentence. Although the opportunity to commit those offences may have been an incentive to commit the forcible confinement offence, the offences involved a separate and additional criminality and the sentences need not have been wholly subsumed in the forcible confinement sentence. Thus, even if we had considered that the forcible confinement sentence as such was excessive, we would not have considered that the total sentence for the three offences was excessive.
The appeal must be dismissed.
| I certify that the preceding twenty-four [24] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Leila Tai Date: 8 September 2015 |
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